MERTER AND OTHERS v. TURKEY

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2249/03
by Mehmet Rauf MERTER and Others
against Turkey

The European Court of Human Rights (Second Section), sitting on      20 September 2005 as a Chamber composed of:

MrJ.-P. Costa, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrR. Türmen,
MrV. Butkevych,
MsD. Jočienė,
MrD. Popović, judges,
and Mr S. Naismith, Deputy Section Registrar,

Having regard to the above application lodged on 16 November 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Mehmet Rauf Merter, Mr Ahmet Attila Merter, Mr Nesip Mustafa Merter, Mr Mehmet Berke Merter are Turkish nationals and the applicant Mrs Karen Ingrit is a German national. They are represented before the Court by Mr S. Akdağ, a lawyer practising in Istanbul.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 16 May 1951 the owner of the neighbouring plot of land (“neighbour”) brought an action before the Istanbul Civil Court of First Instance against the applicants’ testator (“testator”) claiming that the actual volume of his plot of land exceeded the amount indicated in the title deed registry. He further claimed that since the actual borders were not definite between his and the neighbouring plot of land, the testator was restricting his usage of the property (men-i müdahale davası). He therefore requested the court to resolve this dispute by determining the actual borders between the plots and hold that the correct volumes be registered in the title deed registry.

1. The Land Registry Commission’s land survey of 10 October 1954

On 10 October 1954, due to the construction of a road passing through this land in question the Land Registry Commission conducted a cadastre measurement in Bakırköy which consequently amended the records concerning the plot in question. Following this amendment, the plot in question was split into nine different parts, namely the plots numbered 110, 113, 114, 115, 116, 117, 118, 119 and 168. The plot no. 113 was allocated as meadowland and registered with the Treasury; the plots numbered 115, 116, 119 and 168 were registered with the testator in the records of the Title Deed Registry. The plots numbered 110, 114,117 and 118 were registered with the neighbour.

2. The Istanbul Civil Court of First Instance’s decision of non-jurisdiction

On 15 February 1954 following this registration process and pursuant to the establishment of the Cadastral Courts, the Istanbul Civil Court of First Instance gave a decision of non-jurisdiction and transferred this lawsuit to Bakırköy Cadastral Court.

3. The Bakırköy Cadastral Court’s judgment of 23 July 1960

On 23 July 1960 the Bakırköy Cadastral Court decided that the plots numbered 115,116,119 be registered with the testator, the plots numbered 113 and 118 be registered with the Treasury, the plots numbered 110,114,117 be registered with the neighbour. On 13 March 1961 the Court of Cassation quashed this judgment.

4. The Bakırköy Cadastral Court’s judgment of 9 May 1988

On 9 May 1988 the Bakırköy Cadastral Court decided that the plots numbered 115 and 119 be registered with the testator and plots numbered 113 and 118 be registered with the Municipality of Istanbul and the Treasury respectively. The court also held that the plots numbered 110,114,116 and 117 be registered with the heirs of the neighbour. The court finally allowed the intervention claim of the heirs of Ahmet Kethüda who stated that their ancestor partially maintained the abovementioned plots in his possession before the proceedings had begun.

5. The Court of Cassation’s judgment of 6 March 1990

On 6 March 1990 the Court of Cassation quashed this judgment for non-compliance with procedural grounds in the announcement of the judgment. It further considered that the examination conducted by the first instance court was insufficient and that the court should have decided after taking into consideration the “de facto possession” over these plots of land.

6. The Bakırköy Cadastral Court’s judgment of 23 December 1992

On 23 December 1992 the Bakırköy Cadastral Court decided that the plots numbered 115 and 119 be registered with the testator and the plots numbered 113 and 118 be registered with the Municipality of Istanbul and the Treasury respectively. The court also held that the plots numbered 110,114 and 117 be registered with the heirs of the neighbour.

7. The Court of Cassation’s judgment of 8 February 1994

On 8 February 1994 the Court of Cassation quashed this judgment. It reasoned that the examination conducted by the first instance court was insufficient, namely because it rendered a judgment although expert reports and the statements of the witnesses were contradicting each other and that the court failed to verify whether some of the documentary evidence was genuine.

8. The Bakırköy Cadastral Court’s judgment of 7 May 1996

On 7 May 1996 the Bakırköy Cadastral Court decided that the registration records regarding the plots numbered 110,113,114,116,117 and 118 remain the same and the plots numbered 115 and 119 be registered with the heirs of Ahmet Kethüda who intervened in 1988. On 4 February 1997 the Court of Cassation rejected the appeal request of the heirs of the neighbour against this decision of the cadastral court.

9. The Bakırköy Cadastral Court’s judgment of 27 May 1998

On 27 May 1998 the Bakırköy Cadastral Court rejected the applicants’ objection against its decision of 7 May 1996 where they requested the re-opening of the proceedings (iade-i muhakeme).

10. The applicants’ application of 1 February 1999 to the Bakırköy Cadastral Court

On 1 February 1999 the applicants applied to the Bakırköy Cadastral Court claiming that since the judgment of 23 December 1992 had not been communicated to them, they were unable to appeal against this judgment. They requested from the court the communication of this judgment. On 2 February 1999 holding that the judgment was already communicated to them, the court rejected their request.

11. The Court of Cassation’s judgment of 13 June 2000

On 13 June 2000 the Court of Cassation admitted the applicants’ appeal against the Bakırköy Cadastral Court’s judgment of 2 February 1999 on the ground that the case-file did not contain any information or documents evidencing the communication of this judgment to the applicants.

12. The Court of Cassation’s judgment of 31 May 2002

On 31 May 2002 the Court of Cassation rejected the applicants’ request for rectification of the Bakırköy Cadastral Court’s judgment of 2 February 1999.

COMPLAINTS

Invoking Article 6 § 1 of the Convention the applicants complain that they were denied a fair hearing since the proceedings lasted for more than fifty years.

Under the same heading, they further allege that the national courts failed in collecting the evidence on a timely basis as well as evaluating the documents and the expert reports submitted to them in due course. In this context, they further allege that the domestic courts did not act impartially throughout the whole course of the proceedings.

Invoking Article 1 of Protocol No. 1 the applicants complain that the actions of the cadastral commission and the judgments of the national courts constituted an unjustified interference with their right to property.

Without specifying any reasons they invoke Article 13 of the Convention.

THE LAW

1. Invoking Article 6 § 1 of the Convention the applicants allege that the length of the civil proceedings which lasted more than fifty years was excessive.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. They further complain under the same heading that their case was not heard by an impartial tribunal. Moreover the courts failed to evaluate in due course the documents and the expert reports submitted to them and to collect evidence on a timely basis.

The Court notes that the applicants did not elaborate in what respect Bakırköy Cadastre Court lacked impartiality and the proceedings before it lacked fairness. Furthermore, the Court does not perceive any indication of unfairness or arbitrariness concerning the evaluation of the facts or evidence or the interpretation of the domestic law such as to raise an issue under Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Without specifying any reasons the applicants invoke Article 13 of the Convention.

The Court observes that the applicants failed to substantiate their complaint under Article 13 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicants complain under Article 1 of Protocol No. 1 that the procedural actions of the administration and the judgments of the national courts constituted an unjustified interference with their right to peaceful enjoyment of their possessions.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning the length of the civil proceedings and the alleged deprivation of property;

Declares the remainder of the application inadmissible.

S. NaismithJ.-P. Costa
              Deputy RegistrarPresident

 

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